COURT OF APPEAL FOR ONTARIO

CITATION: King v. Ryerson University, 2015 ONCA 648

DATE: 20150925

DOCKET: C60211

Cronk, Hourigan and Benotto JJ.A.

BETWEEN

Justine Annette King

Plaintiff/Appellant

and

Ryerson University and Timothy Sly

Defendants/Respondents

Counsel:

Justine King, acting in person

Ashley Richards, for the respondents

Heard: September 21, 2015

On appeal from the order of Justice Carole Brown of the Superior Court of Justice, dated January 27, 2015.

ENDORSEMENT

[1] This is an appeal from the order of C. Brown J. of the Superior Court of Justice, dated January 27, 2015, striking the appellant’s Fresh As Amended Statement of Claim dated August 12, 2014, as amended effective January 28, 2014 (the “Amended Claim”), without leave to amend, and dismissing the appellant’s action as against both respondents, in its entirety.

[2] Having carefully considered the contents of the appellant’s Amended Claim and her arguments on appeal, we conclude that there is no basis upon which to interfere with the motion judge’s order. Accordingly, this appeal must be dismissed.

[3] We say this for the following reasons.

A. Claims Against Ryerson University

[4] Most of the appellant’s claims against the respondent Ryerson University (“Ryerson”) are framed in breach of contract, negligence and the tort of intentional infliction of mental distress. With respect to these claims, in addition to other pleadings deficiencies, the appellant has failed to plead the requisite elements of each of these causes of action or material facts sufficient to support her claims.

[5] To the extent that the appellant pleads discriminatory conduct by Ryerson or its employees, and seeks damages in respect of such conduct, the Supreme Court has confirmed that there is no cause of action in tort at common law for discrimination, nor an “independently actionable wrong” in respect of discriminatory conduct for the purpose of awarding punitive damages: see Seneca College of Applied Arts & Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 SCR 181, at pp. 183 and 195; Keays v. Honda Canada Inc., 2008 SCC 39, at para. 63. As a result, where, as here, a person alleges conduct that offends the Ontario Human Rights Code, a remedy must be sought within the statutory scheme of the Code itself. We note that the appellant previously initiated a complaint to the Ontario Human Rights Tribunal, seeking damages against Ryerson on essentially the same basis as set out in her Amended Claim.

[6] The appellant also alleges “educational malpractice” by Ryerson. The alleged misconduct by Ryerson principally concerns the improper construction and administration of an exam, failure to respond to questions posed by the appellant concerning the exam in question, and Ryerson’s conduct and that of its employees in relation to that exam and the appellant’s grades.

[7] These are issues relating to Ryerson’s organization and administration of its examination, grading, complaints and oversight programs, policies and practices, which fall squarely within its discretion and its internal academic decision-making. In the first instance, resort to the university’s internal processes, rather than the courts, is the proper procedure to be followed for the resolution of complaints or concerns regarding such matters. In other instances, complaints or concerns about such matters may properly form the subject-matter of a judicial review application.

[8] In this case, the appellant has failed to plead specific facts that could demonstrate that Ryerson’s alleged conduct “constituted an intentional tort or fell outside the broad margin of discretion enjoyed by the university and its professors”: Jaffer v. York University, 2010 ONCA 654, 268 O.A.C. 338, at para. 56. Even assuming, without deciding, that a claim based on a theory of “educational malpractice” may be justiciable in a proper case, the Amended Claim fails to provide the requisite factual foundation to ground such a claim.

[9] We note, also, the appellant’s assertion in her factum that the motion judge failed to consider the appellant’s Amended Claim and instead evaluated the appellant’s original statement of claim, which had been struck by order of Stinson J. of the Superior Court of Justice, dated June 23, 2014.

[10] The motion judge’s reasons belie this assertion. Based on her reasons, it is clear that the focus of the motion judge’s analysis was the appellant’s Amended Claim.

[11] For all these reasons, we agree with the motion judge’s ruling striking the Amended Claim as against Ryerson and dismissing the appellant’s action as against it. It is plain and obvious that the appellant’s action as against Ryerson must fail.

[12] We also agree that this is not an appropriate case for the granting of further leave to amend. By reason of Stinson J.’s order, mentioned above, the appellant has already been granted, and taken up, one opportunity to amend her pleading. As we have outlined above, her Amended Claim suffers from multiple pleadings defects and fails to allege a reasonable cause of action as against Ryerson. There is no basis to believe that further amendments by the appellant would yield a proper pleading, with viable causes of action.

B. Claims Against Timothy Sly

[13] We turn now to the appellant’s asserted claims against the personal respondent, Timothy Sly. These claims suffer from a fatal flaw: nothing in the appellant’s Amended Claim discloses any conduct by Mr. Sly outside his duties and obligations as a Ryerson employee. Simply put, no sustainable cause of action against Mr. Sly in his personal capacity is pleaded. Accordingly, we see no basis on which to disturb the motion judge’s order striking the Amended Claim as against Mr. Sly, without leave to amend, and dismissing her action as against him.

C. Costs Claim

[14] In her factum, the appellant also seeks leave to appeal from the costs award in the respondents’ favour, set out at paragraph 2 of the motion judge’s order. This award was based on the parties’ out-of-court agreement regarding the payment of costs by the appellant and the appropriate quantum of those costs ($2,000). Nothing before this court establishes a foundation for the setting aside of a consensual costs award that was incorporated, at the parties’ request, in the motion judge’s formal order.

[15] We note, in any event, the appellant’s indication during oral argument before this court that she is prepared to pay the costs awarded in respect of the motion. Indeed, it appears that she has already offered to do so in discussions with the respondents’ counsel. The appellant, therefore, did not pursue this ground of appeal during the appeal hearing.

D. Other Comments

[16] Finally, we appreciate that the appellant contends that the motion judge also erred by allegedly taking into account unproven facts posited by the respondents in their written and oral arguments on the motion.

[17] We disagree. While the motion judge’s reasons refer in some places to submissions by counsel, they also confirm that her decision and analysis were grounded in her consideration of the appellant’s own Amended Claim.

E. Disposition

[18] For the reasons given, the appeal is dismissed. The respondents are entitled to their costs of the appeal, if sought, in the total amount of $1,000, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“C.W. Hourigan J.A.”

“M.L. Benotto J.A.”